FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pearse & Tehan [2024] FedCFamC2F 891
File number(s): ADC 4083 of 2019 Judgment of: JUDGE PARKER Date of judgment: 10 July 2024 Catchwords: FAMILY LAW – CHILDREN – where Mother alleges coercive controlling violence and manipulation of children by Father – where Mother seeks continuation of longstanding equal time arrangement – where Father seeks the children live with him and spend time with Mother in accordance with their wishes – orders made as sought by Mother.
FAMILY LAW – PROPERTY – where De Facto Wife’s evidence is preferred because De Facto Husband’s evidence is found to be unsatisfactory and unreliable – where the De Facto Husband has failed to comply with disclosure obligations – where transactions asserted by De Facto Husband found not to be genuine – where obfuscatory conduct on the part of the De Facto Husband hampered the ability of the Court to make findings sought by him – where expenditure on legal fees is added back – where significant adjustment in favour of De Facto Wife pursuant to s 90SF(3) found to be warranted.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 68B, 90SF, 90SM, 90ST, 117
Family Law Amendment Act 2023 (Cth) s 12
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)(e)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Cases cited: af Petersens & af Petersens [1981] FamCA 50; (1981) FLC ¶91-095
Aleksovski & Aleksovski [1996] FamCA 111; (1996) FLC ¶92-705
Andrew & Delaine [2009] FamCAFC 182
Bachman & Self [2023] FedCFamC1A 50.
BAR & JMR (No 2) [2005] FamCA 386; (2005) FLC ¶93-231
Baranski & Baranski [2012] FamCAFC 18
Barnell & Barnell [2020] FamCAFC 102; (2020) FLC ¶93-961
Beklar & Beklar [2013] FamCA 327
Benson & Drury [2020] FamCAFC 303; (2020) FLC ¶93-998
Best & Best [1993] FamCA 107; (1993) FLC ¶92-418
Biltoft & Biltoft [1995] FamCA 45; (1995) FLC ¶92-614
Bishop & Bishop [2013] FamCAFC 138; (2013) FLC ¶93-553
Black & Kellner [1992] FamCA 2; (1992) FLC ¶92-287
Bolger & Headon [2014] FamCAFC 27; (2014) FLC ¶93-575
Britt & Britt [2017] FamCAFC 27; (2017) FLC ¶93-764
Browne & Green (1999) FLC ¶92-873
C & C [1998] FamCA 143
Chang & Su [2002] FamCA 156; (2002) FLC ¶93-117
Chappell & Chappell [2008] FamCAFC 143; (2008) FLC ¶93-382
NHC & RCH [2004] FamCA 633; (2004) FLC ¶93-204
Clauson & Clauson [1995] FamCA 10; (1995) FLC ¶92-595
Clowes & Konig [2022] FedCFamC1F 565
C & C [2005] FamCA 429; (2005) FLC ¶93-220
Cubbin & Cutler [2018] FamCAFC 84
D & P [2006] FamCA 170;
Dickons & Dickons [2012] FamCAFC 154
DJM & JLM [1998] FamCA 97; (1998) FLC ¶92-816
DL & W [2012] FamCAFC 5; (2012) FLC ¶93-496
D & D [2006] FamCA…
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- Pearse & Tehan [2024] FedCFamC2F 891
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- [2024] FedCFamC2F 891
- Decision Date
CaseChat Overview and Summary
The court ruled that the children, X, Y, and Z, would live between the parties on a week-about basis, with specific arrangements for school terms, school holidays, and special occasions. Child X was given the autonomy to decide where she lives during school terms and the time she spends with each parent during school holidays and special occasions. The court also ordered that Mr. Pearse meet 100% of all costs associated with the children's education, health, and extracurricular activities. In terms of property, the court found Ms. Tehan's evidence more credible and ordered a significant financial adjustment in her favour, including cash payments, the discharge of a mortgage, and the division of superannuation interests. The court also mandated specific actions for the sale of certain properties and the distribution of proceeds, ensuring the equitable division of assets. Both parties were restrained from various actions that could negatively impact the children, and specific injunctions were put in place to protect the children's welfare.
Orders
Orders of the court
ADC 4083 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR PEARSE
Applicant
AND:
MS TEHAN
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
10 JULY 2024
UPON NOTING THAT:
A. The Father shall meet 100% of all costs associated with:
(i) The children’s attendance at their private schools;
(ii) The children’s extra-curricular activities fees;
(iii) The children’s school excursions/camps;
(iv) The children’s private health; and
(v) The children’s mobile telephones.
B. Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these orders.
THE COURT ORDERS THAT:
Parenting
1. All previous parenting orders are discharged.
2. The parties have equal shared parental responsibility for the children X born in 2007, Y born in 2009 and Z born in 2011 (collectively ‘the children’).
3. The child X be at liberty to decide:
(a) with which parent she lives during school terms;
(b) whether she remains living in B School during school terms; and
(c) the time she spends with each of the parties during school holidays and special occasions, including whether she spends time with each of the parties in accordance with the provisions of these orders.
4. The children Y and Z live between the parties on a week about basis, with handover to take place every Monday at 5:30pm.
5. Should either party be unable to care for Y and/or Z for a period of time greater than 24 hours, they shall notify the other party so that the other may care for the children in their absence should they be able to do so.
Special occasions
6. On the children’s birthdays, the children shall spend time with the parties as agreed between the parties in writing and in default of agreement, with the parent in whose care they are not ordinarily in on that day from the conclusion of school (or 4:00pm if a non-school day) to 8:30pm.
7. On the Mother’s birthday, the children shall spend time with the Mother as agreed between the parties in writing and in default of agreement, in the event that the children are not ordinarily in the care of the Mother at any time of the Mother’s birthday the children spend time with the Mother from the conclusion of school (or 3:30pm if a non‑school day) to the commencement of school the following day (or 10:00am if a non-school day).
8. On the Father’s birthday, the children shall spend time with the Father as agreed between the parties in writing and in default of agreement, in the event that the children are not ordinarily in the care of the Father at any time of the Father’s birthday the children spend time with the Father from the conclusion of school (or 3:30pm if a non‑school day) to the commencement of school the following day (or 10:00 am if a non-school day).
9. At Christmas, the children shall spend time with the parties as agreed between the parties in writing and in default of agreement:
(a) The children shall spend time with the Father from 4:00pm on Christmas Eve (24 December) to 10:00am Boxing Day (26 December) in 2024 and each alternate year thereafter; and
(b) The children shall spend time with the Mother from 4:00pm on Christmas Eve (24 December) to 10:00am Boxing Day (26 December) in 2025 and each alternate year thereafter.
10. On New Year’s Eve the children shall remain in the care of the parent whose care they are already in on that day.
11. Should Mother’s Day fall on a day when the Father would ordinarily spend time with the children then the children shall live with the Mother from 6:00pm on the Friday before Mother’s Day until the commencement of school on the following Monday (or 10:00am if a non-school day) unless otherwise agreed in writing.
12. Should Father’s Day fall on a day when the Mother would ordinarily spend time with the children then the children shall live with the Father from 6:00pm on the Friday before Father’s Day until the commencement of school on the following Monday (or 10:00am if a non-school day) unless otherwise agreed in writing.
13. At Easter the children shall spend time with the parties as agreed between them in writing and in default of agreement:
(a) The children shall spend time with the Father from 5:00pm Maundy Thursday (the Thursday before Good Friday) to 5:30pm on Easter Monday in 2025 and each alternate year thereafter; and
(b) The children shall spend time with the Mother from 5:00pm Maundy Thursday (the Thursday before Good Friday) to 5:30pm on Easter Monday in 2026 and each alternate year thereafter.
School holidays
14. In the June/July school holidays that the children spend approximately equal time with the parties (approximately 10 days) with handover to occur on the middle day of the school holidays and in default of agreement, on the Wednesday on the second week of the holidays at 5:30pm.
15. In relation to the long summer school holidays, that the children remain with each parent for a 2 week period with handover to remain on a Monday at 5:30pm.
Handover
16. Handover that does not occur at the children’s school take place at the home of the receiving parent.
17. The parent who is delivering the children is responsible also for the delivery of the children’s belongings (for example their sport and school uniforms).
Telephone communication
18. The children be at liberty to telephone their parents at all reasonable times as requested by the children.
Schooling
19. Each of the parties be at liberty to obtain information and material that would ordinarily be provided to parents from each of the children’s schools (including X’s boarding school) including historical information.
20. Each party be at liberty to attend concerts, presentations, graduation ceremonies, events, milestones, social functions or any other celebrations associated with the children’s schooling.
21. X and Y attend B School for the remainder of their schooling or such other school as is agreed between the parties in writing.
22. Z attend C School for the remainder of his schooling or such other school as is agreed between the parties in writing.
Health
23. In respect of the children’s health:
(a) In the event of an emergency, serious injury of significant event which may or may not involve hospital attendance involving any of the children, the party who has care of the relevant child shall notify the other parent as soon as practicable by telephone or text and each parent is at liberty to attend at any hospital at which the children or any of them attend.
(b) The parties each keep the other informed of all allied health professionals, medical specialists or dental practitioners they propose the children should consult not less than 14 days prior to any such consultation and shall provide to each other the following information in writing:
(i) The date of the proposed appointment;
(ii) The full name, address and phone number of the professional to be consulted; and
(iii) The purpose of the consultation.
(c) Each of the parties be at liberty to obtain information and material that would ordinarily be provided to parents from any medical practitioners or allied health professionals providing treatment to the children or any of them.
Extra-curricular activities
24. Each party is at liberty to obtain information from any extra-curricular provider the children or any of them are involved with including being on any electronic communication related to same.
25. Each party be at liberty to attend games, matches, milestones, finals, concerts, presentations, graduation ceremonies, events or any other celebrations associated with any extra-curricular activity the children or any of them are involved with.
26. Each party shall facilitate the children’s attendances at all training, practices, games and performances associated with any extra-curricular activity with which they are involved.
Travel
27. If either party wishes to travel interstate with the children whilst they are in their care, then they must provide the other parent no less than three weeks’ notice.
28. Each party be at liberty to travel outside the Commonwealth of Australia with the children provided always:
(a) The travelling parent give the other parent 12 weeks’ notice in writing;
(b) Travel is not permitted to any country in respect of which there is a DFAT warning ‘Do Not Travel;’
(c) Travel is not permitted for any period that involves Christmas Eve, Christmas Day or Boxing Day or the children’s birthdays;
(d) The travelling parent shall provide the non-travelling parent with a detailed itinerary at least 10 days prior to departure;
(e) If any holiday time intrudes on the other parent’s time with the children, the parties must agree in writing to the children going on the holiday prior to any bookings being made and prior to the children being informed of the proposed travel and any negotiations must be responded to within 48 hours; and
(f) Unless otherwise agreed between the parties in writing, such travel shall not exceed a period of 14 days.
29. The parties shall equally share any costs associated with renewing or updating the children’s passports.
Injunctions
30. The parties are each restrained and an injunction is hereby granted restraining each of them from:
(a) Denigrating the other or any member of the other’s family or partner in the presence or hearing of the children or allowing any other person to do so;
(b) Discussing these proceedings with or allowing the children to see or read any documents in the within proceedings and from allowing any other person to do so; and
(c) Physically disciplining or restraining the children.
31. The Father is restrained and an injunction is hereby granted restraining him from:
(a) Enrolling the children in any school or educational facility other than B School or C School without the written consent of the Mother having first been obtained; or
(b) Enrolling the children Y or Z in any boarding school without the written consent of the Mother having first been obtained.
(c) Taking any of the children to a social worker, therapist or psychologist without the written consent of the Mother having first been obtained.
Recovery order and suspension
32. In the event the Father retains Y and/or Z in his care contrary to these orders, a self-executing recovery order issue as follows:
(a) Pursuant to section 67Q of the Family Law Act 1975 (Cth), a recovery order urgently issue directing the Marshall, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(i) To find and recover Y and/or Z; and
(ii) To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child or children may be found; and
(iii) To deliver the child or children to the Mother at such a place as the Mother and the person effecting such recovery agree to be appropriate.
33. Thereafter the children’s time with the Father pursuant to these orders is suspended for such period as to provide the Mother make up time for any period of time missed as a result of the Father’s retention of the child or children in his care.
Miscellaneous
34. Each party shall keep the other informed as to their residential address, mobile telephone number and current email address.
35. The Mother be at liberty to provide a copy of the judgment in this matter to the children’s schools and to any medical practitioner, therapist or counsellor upon whom the children may attend, PROVIDED THAT such copy is to be redacted to remove portions relating only to the financial dispute between the parties.
Property matters
In full and final settlement of any claim that either party may have against the other now or at any time in the future for settlement of property or alteration of interests in property:
Cash payment
36. The De Facto Husband forthwith make a cash payment to the De Facto Wife in the sum of $92,343.48 from the De Facto Husband’s CBA account ending …17.
D Street, Suburb E
37. The De Facto Husband shall forthwith do all things necessary and sign all such documentations as may be required to discharge the mortgage with dealing number … registered over the property situated at D Street, Suburb E in the State of South Australia, being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … (‘Suburb E property’) at the De Facto Husband’s sole expense.
Superannuation
38. With respect to the De Facto Husband’s interest in Super Fund 1 with the Member Number … (‘Superannuation Fund’):
(a) Pursuant to section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the Applicant De Facto Husband’s interest in the Superannuation Fund (Super Fund 1), the trustee (“Super Fund 1”) shall pay to the Respondent De Facto Wife the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of FIFTY-TWO THOUSAND FIVE HUNDRED AND SEVENTY THREE DOLLARS ($52,573) and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders
(b) The Trustee in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, shall do all acts and things as may be necessary to calculate the entitlement of and make the payment to the De Facto Wife in accordance with the preceding sub-paragraph herein;
(c) This order shall have effect from the operative time;
(d) The operative time shall be four (4) business days after the date of service of this order upon the Trustee;
(e) The De Facto Wife shall serve a certified copy of this order upon the Trustee within fourteen (14) days of the date of this order by ordinary pre-paid post; and
(f) This order binds and shall bind the Trustee.
The Pearse Retirement Fund
39. The De Facto Husband and the De Facto Wife shall:
(a) Forthwith do all things and sign all such documents necessary as may be required to cause the sale of the property situated at E Street, Suburb F;
(b) As soon as practicable after a contract for sale is signed, jointly instruct Mr G or such other accountant as may be agreed between them to calculate the capital gains tax arising from the sale;
(c) Upon the settlement of the sale, after payment of the costs of sale and repayment and discharge of the mortgage encumbering the Suburb F property, cause the Pearse Retirement Fund (‘SMSF’) to pay to the De Facto Husband’s solicitors the sum calculated pursuant to the preceding subparagraph to be held on trust for the purpose of meeting the capital gains tax liability when it arises.
40. The Pearse Retirement Fund shall forthwith thereafter distribute any and all profits received to its members.
41. In the alternative, if and only if it is agreed between the parties, the parties do all things and sign all such documents necessary as may be required to cause the sale of the holiday home owned by the SMSF on such terms and conditions as may be agreed between them.
42. In accordance with Section 90XT(1)(b) of the Family Law Act 1975 (Cth):
(a) The De Facto Husband is entitled to be paid the specified percentage, being 100 percent out of the member entitlement of the De Facto Wife in the SMSF; and
(b) The De Facto Wife’s entitlement to the amount in her member account (and the entitlement of any other person to payments out of the De Facto Wife’s superannuation interest in the SMSF) is correspondingly reduced.
43. The De Facto Husband and De Facto Wife in their capacity as directors of the trustee of the SMSF, shall do all things and sign all such documents as may be necessary to:
(a) Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the De Facto Husband pursuant to paragraph 42 herein; and
(b) Pay the entitlement wherever the trustees make a payment out of the De Facto Wife’s interest in the SMSF.
44. The splitting order in paragraph 42 herein (‘Splitting Order 1’) operates from Operative Time 1.
45. In accordance with s 90XT(1)(b) of the Family Law Act 1975:
(a) The De Facto Wife is entitled to be paid the specified percentage of 50 percent out of the member entitlement of the De Facto Husband in the SMSF; and
(b) The De Facto Husband’s entitlement to the amount in his member account (and the entitlement of any person to payments out of the De Facto Husband’s superannuation interest in the SMSF) is correspondingly reduced.
46. The De Facto Husband and De Facto Wife in their capacity as directors of the trustee of the SMSF do all such acts and things and sign all such documents as may be necessary to:
(a) Calculate in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the De Facto Wife in paragraph 45 herein; and
(b) Pay the entitlement where the trustees make a splittable payment out of the De Facto Husband’s interest in the SMSF.
47. The splitting order in paragraph 45 herein (‘Splitting Order 2’) operates from Operative Time 2.
48. The operative times for Splitting Order 1 and Splitting Order 2 are as follows:
(a) Firstly, Operative Time 1 operates from the date of receipt of the net proceeds of sale of the property situated at Suburb F; and
(b) Secondly, Operative Time 2 operates immediately following operation of Operative Time 1.
49. The parties as directors of the trustee of the SMSF acknowledge that they have been accorded procedural fairness in relation to the making of this order and that the terms of this order will be complied with by the parties in their capacities as directors of the trustee of the SMSF.
50. After service by the trustees, on behalf of the SMSF, of the payment notice pursuant to r.7A.03 of the Superannuation Industry (Superannuation) Regulations 1994, the De Facto Wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to executing her request pursuant to r.7A.06 of the Superannuation Industry (Superannuation) Regulations 1994 for the transfer of the benefit (defined in r.1.03 of the Superannuation Industry (Superannuation) Regulations 1994) from the SMSF to a superannuation fund of the De Facto Wife’s choice.
51. The De Facto Husband and De Facto Wife after receipt of the request contemplated in paragraph 48 of the order shall convene a meeting by exchange of minutes and in that meeting do all such acts and things and sign such documents as may be necessary to enable the transfer of the transferable benefit pursuant to r.7A.12 of the Superannuation Industry (Superannuation) Regulation 1994 to the trustee of the De Facto Wife’s new fund.
52. Within 7 days of the Operative Time 2 and at the expense of the SMSF, the De Facto Wife shall resign as a member of the SMSF.
53. Within 30 days of the Operative Time 2, and at the sole expense of the SMSF:
(a) the De Facto Wife shall do all such things and sign all such documentation as may be required to renounce and surrender any and all beneficial interests or entitlements she may have in the SMSF; and
(b) the De Facto Wife shall resign as a director of The Pearse Retirement Fund.
54. As at the date of the Operative Time 2, the De Facto Husband shall indemnify the De Facto Wife and keep her forever indemnified against all debts and liabilities of and in relation to the SMSF including, but not limited to:
(a) All taxation liabilities of the SMSF;
(b) Any debt guaranteed by either of the parties in respect of the SMSF;
(c) Any unpaid income tax assessed or hereinafter assessed by the Australian Taxation Office against the De Facto Husband and/or De Facto Wife in respect of income derived or deemed to have been derived, dividend or distribution of funds from the SMSF including penalties, costs and fines;
(d) All proceedings, costs, claims and demands incurred in respect of the SMSF; and
(e) Any penalties and liabilities arising out of non-compliance.
55. The De Facto Wife do all things necessary and execute all documents and instruments to enable the De Facto Husband to continue to conduct the SMSF after the exit of the De Facto Wife in a manner consistent with the law.
De Facto Husband’s sole property
56. Unless otherwise specified herein, the De Facto Husband shall retain as his own, free from any right, title or claim by the De Facto Wife, the following:
(a) All entities controlled by the De Facto Husband, including but not limited to:
(i) H Pty Ltd
(ii) J Pty Ltd
(iii) K Pty Ltd
(iv) Pearse Family Investment Pty Ltd as trustee for Pearse Investment Trust
(v) L Pty Ltd
(vi) M Pty Ltd
(vii) N Pty Ltd
(viii) Pearse Family Investments No. 2 Pty Ltd as trustee for Pearse Investment Trust No. 2
(ix) O Company
(x) P Pty Ltd
(xi) Q Company
(xii) R Company
(xiii) S Company
(xiv) T Company
(xv) U Pty Ltd
(b) His savings;
(c) Vehicle 1;
(d) Vehicle 2;
(e) All furniture and effects and other chattels in his current possession and control;
(f) His 50 percent share of the SMSF;
(g) His Super Fund 1 subject to paragraph 38 herein;
(h) All other property in his possession or control whether registered in his name or not and not otherwise specified herein.
De Facto Wife’s sole property
57. Unless otherwise specified herein, the De Facto Wife shall retain as her own, free from any right, title or clam by the De Facto Husband, the following:
(a) The property situated at D Street, Suburb E, SA;
(b) Her savings;
(c) Her shares;
(d) Her Motor Vehicle 3;
(e) Her 50 percent share of the SMSF (to be transferred in accordance with the requirements of paragraph 50 herein);
(f) Her entitlement to the De Facto Husband’s Super Fund 1 in accordance with paragraph 38 herein;
(g) Her superannuation entitlements with Super Fund 2; and
(h) All other property in her possession or control whether registered in her name or not and not otherwise specified herein.
Indemnities
58. Unless otherwise specified herein, the De Facto Husband be solely liable and do forever indemnify the De Facto Wife in respect of all current and future liabilities in his sole name, including but not limited to:
(a) All entities controlled by the De Facto Husband, including but not limited to those named in paragraph 56(a) herein;
(b) Any loans in relation to all entities controlled by the De Facto Husband, including but not limited to those in paragraph 56(a) herein;
(c) All fees due and owing to B School and C School;
(d) His legal fees; and
(e) Any loan to his parents.
59. Unless otherwise specified herein, the De Facto Wife be solely liable and do forever indemnify the De Facto Husband in respect of all current and future liabilities in her sole name, including but not limited to:
(a) Any loan to her parents;
(b) Her HECS debt; and
(c) Her legal fees.
General orders
60. Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this order within fourteen (14) days of being requested to do so.
61. In the event that either of the parties refuse or neglect to execute any document necessary to give effect to the terms of this order within fourteen (14) days after the same shall have been tendered to him or her for that purpose, then and in such case a Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 2) upon proof by affidavit of such refusal or neglect is hereby appointed under Section 106A of the Family Law Act 1975 (Cth) to execute on behalf of either party and if in his or her opinion it shall be necessary to do so settle the same and do all such other acts or things and execute all such other documents as shall be necessary to give full force and effect hereto and shall execute and do the same accordingly.
62. Unless otherwise specified herein:
(a) Each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party at the date of this order;
(b) Each party forego any claims he or she may have to any superannuation benefits and employment entitlements belonging to or earned by the other;
(c) Each party be restrained and an injunction shall be granted restraining each of them from pledging the credit of the other;
(d) Insurance policies remain the sole property of the beneficiary named therein; and
(e) Each party shall each bear their own costs of and incidental to these proceedings including the preparation of this order.
Applications as to costs
63. Any application as to costs in relation to these proceedings (save for any costs application arising from any subsequent default) must:
(a) Be made in proper form, by way of an Application in a Proceeding or Response to Application in a Proceeding as applicable;
(b) Be made within 28 days of the date of these orders;
(c) Set out with particularity the precise orders sought;
(d) Be accompanied by an affidavit setting out:
(i) The evidence relied upon in support of the application;
(ii) The means by which the costs sought have been calculated; and
(iii) Irrespective of the basis upon which the costs are sought, a calculation of the costs sought in accordance with the scale set out in Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2)(Family Law) Rules 2021.
64. The Applicant in relation to any application for costs shall be at liberty to file one affidavit in reply to an affidavit filed by the Respondent in accordance with the preceding order within 14 days of service of such affidavit.
65. No later than 7 days prior to the date upon which any costs application filed is listed for hearing, the parties each file and serve a Case Outline document setting out a summary of argument in relation to the issue of costs.
66. Without prejudice to the right of either party to bring an application for costs with respect to any part of the proceedings including with respect to any costs reserved by previous order of the Court, all extant applications are dismissed as finalised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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